FILED DEC 29 2020 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC BATES; et al., No. 19-17094

Plaintiffs-Appellants, D.C. No. 1:14-cv-02085-LJO-SAB v.

ARNOLD SCHWARZENEGGER, MEMORANDUM* Former Governor of the State of California; et al.,

Defendants-Appellees.

MARLON ALTAMIRANO; et al., No. 19-17099

Plaintiffs-Appellants, D.C. No. 1:15-cv-00607-LJO-SAB v.

ARNOLD SCHWARZENEGGER, Former Governor of the State of California; et al.,

Defendants-Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ANDREW ALANIZ; et al., No. 19-17103

Plaintiffs-Appellants, D.C. No. 1:15-cv-01063-LJO-SAB v.

ARNOLD SCHWARZENEGGER, Former Governor of the State of California; et al.,

Defendants-Appellees.

JOSE APARICIO; et al., No. 19-17105

Plaintiffs-Appellants, D.C. No. 1:15-cv-01369-LJO-SAB v.

ARNOLD SCHWARZENEGGER, Former Governor of the State of California; et al.,

Defendants-Appellees.

DEREK BIRGE; et al., No. 19-17106

Plaintiffs-Appellants, D.C. No. 1:15-cv-01901-LJO-SAB v.

ARNOLD SCHWARZENEGGER, Former Governor of the State of California; et al.,

2 Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted November 19, 2020** Pasadena, California

Before: LINN,*** RAWLINSON, and HUNSAKER, Circuit Judges.

This consolidated appeal arises from civil rights complaints filed by

Appellants-Plaintiffs California state prison inmates, under 42 U.S.C. § 1983,

alleging that Appellees-Defendants state officials violated their right, under the

Eighth Amendment, to be protected from heightened exposure to Valley Fever

spores. The district court dismissed Plaintiffs’ claims based on qualified

immunity. We have jurisdiction under 28 U.S.C. § 1291, and review de novo

dismissal based on qualified immunity under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. See Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir. 2019).

Dismissal of Plaintiffs’ claims against the state official defendants was

proper because it would not have been clear to every reasonable official that

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. 3 Plaintiffs’ heightened exposure to Valley Fever was unlawful under the

circumstances. See id. at 1229 (holding that there was no clearly established “right

to be free from heightened exposure to Valley Fever spores”).

Plaintiffs’ argument that we may depart from our ruling in Hines is

unavailing. A “later three-judge panel considering a case that is controlled by the

rule announced in an earlier panel’s opinion has no choice but to apply the

earlier-adopted rule.” Hart v. Massanari, 266 F.3d 1155, 1171-73 (9th Cir. 2001).

Plaintiffs’ contention that the qualified immunity doctrine violates the

separation of powers doctrine or violates due process is unavailing. Circuit courts

must follow Supreme Court precedent. See Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc) (explaining that “lower courts [are] bound . . . by the

holdings of higher courts’ decisions”). The Supreme Court has repeatedly,

including very recently, reaffirmed and applied the doctrine of qualified immunity.

See e.g., Taylor v. Riojas, No. 19-1261, __ S.Ct. __, 2020 WL 6385693 at *1 (Nov.

2, 2020) (per curiam); Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per

curiam). Thus, we also apply the doctrine here.

AFFIRMED.

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